I am unable to concur in the opinion of my learned brother WALKER, and feel that I should state the reasons compelling my dissent. Those reasons have already been stated in an opinion previously written by me, and I still adhere to the views therein expressed. I now use so much thereof as is necessary to understand my dissent.
The sole question for our consideration is whether the assent of the city is a prerequisite to the right of the railroad to build its tracks across public streets of said city. Appellants rely upon Section 9850, Revised Statutes 1919, being part of Chapter 90, Article II, in relation to railroad companies. So much of said section as is of interest here reads as follows:
"Every corporation formed under this article shall, in addition to the powers hereinbefore conferred, have power: . . . third, to lay out its road, . . . and to construct the same; . . . fourth, to construct its road across . . . any street, . . . Nothing herein contained shall be construed to authorize . . . the construction of any railroad not already located . . . across any street in a city . . . without the assent of the corporate authorities of said city . . ."
If this section is now in full force and effect, it is apparent that the railroad cannot construct its tracks across Sixteenth, Seventeenth and Liberty streets without the assent of the corporate authorities of Kansas City and the order of the Commission cannot be sustained. The cases of Lockwood v. Railroad Co., 122 Mo. 86, and State ex rel. v. Railway Co., 86 Mo. 288, cited and relied upon by appellants, give us no aid, for the reason they were decided long before the enactment of the Public Service Commission Act. Respondents contend that in so far as said Section 9850 requires the assent of the city, it is in conflict with Sections 10458 and 10459, Revised Statutes 1919 (Secs. 49 and 50, P.S.C. Act), and therefore that said Section 9850 in that respect has been repealed by implication. *Page 202
Section 10458 reads as follows:
"If, in the judgment of the commission, additional tracks, switches, terminals or terminal facilities, stations, motive power, or any other property, construction, apparatus, equipment, facilities or device for use by any common carrier, railroad corporation or street railroad corporation in or in connection with the transportation of passengers or property ought reasonably to be provided, . . . in order to promote the security or convenience of the public or employees, or in order to secure adequate service or facilities for the transportation of passengers or property, the commission shall, after a hearing, either on its own motion or after complaint, make and serve an order directing such repairs, improvements, changes or additions to be made within a reasonable time and in a manner to be specified therein, and every common carrier, railroad corporation and street railroad corporation is hereby required to make all repairs, improvements, changes and additions required of it by any order of the commission served upon it. . . ."
The applicable portion of Section 10459 reads as follows:
"1. . . . Nor shall the track of any railroad corporation be constructed across a public road, highway or street at grade . . . without having first secured the permission of the commission. . . . The commission shall have the right to refuse its permission or to grant it upon such terms and conditions as it may prescribe.
"2. The commission shall have the exclusive power to determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, apportionment of expenses, use and protection of each crossing of . . . a public road or highway by a railroad or street railroad or of a street by a railroad or vice versa, so far applicable, and to alter or abolish any such crossing. . . ."
Said section then proceeds to provide for the separation of grades, etc. *Page 203
Appellants contend that said Section 9850 is in full force and is unaffected by the enactment of said Sections 10458 and 10459, and that the assent of the municipal authorities before the railroad can extend its tracks across the streets of the city is still required. Section 10550, Revised Statutes 1919, expressly repeals Sections 9568, 9569 and 9570, Revised Statutes 1909, and all other laws and parts of laws in conflict with the Public Service Commission Act and concludes as follows:
"The provisions of this law are not intended to repeal any law now in force, unless in direct conflict therewith, but is intended to be supplemental to such laws."
Appellants lay great stress on the language quoted from Section 10550. However, such language is but a statement of the general rule governing repeals by implication. [36 Cyc. 1073; State ex rel. v. Wells, 210 Mo. 601, l.c. 620.] If Section 9850 is in conflict with Section 10459 then the latter, as a later expression of the legislative will, repealed said Section 9850 by implication.
It is apparent that under Section 10458 the Commission has full power to require the railroad and its receiver to furnish better and more adequate facilities. Such being the case, the Commission must of necessity have implied power to require said railroad to do whatever is necessary to comply with such order, even to the crossing of streets and highways. [C.B. Q. Railroad v. Cavanaugh, 278 Ill. 609, l.c. 615; Railroad Co. v. N.C. Corporation Comm., 206 U.S. 1, l.c. 27.] It is of no importance that the railroad is willing to make the needed extension of facilities and itself seeks authority to do the things necessary to carry into effect the needed extension. Such willingness does not affect the powers of the Commission as defined in the statute. We must look to the provisions of Section 10459 in the light of the provisions of Section 10458 to determine the powers of the Commission in the premises.
There is a finality in the language of subdivision 1 of Section 10459 when read as a whole, which admits of no divided authority. If the last sentence of said subdivision *Page 204 had not been added and the provisions of subdivision 2 had been omitted altogether, there might be some room for the contention made by appellants that the giving of the permission of the Commission to the construction of grade crossings is only required for the purpose of protecting the public from dangers incident to the use of grade crossings and not intended to take the place of the city's assent; but when it is provided that such permission may be granted upon such terms and conditions as the Commission may prescribe or may be refused altogether, complete finality in the decision of the Commission is fully expressed. This is emphasized in subdivision 2 by the provisions that the Commission shall have the exclusive power to determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, apportionment of expenses, use and protection of each crossing of a street by a railroad, and to alter and abolish any such crossing. These provisions refer to grade crossings only, and are followed by provisions applicable to separation of grades. The requirement of assent of the city under Section 9850 implies the right of the city to make its own terms for the giving of such assent. [St. Louis Ry. Co. v. Kirkwood, 159 Mo. 239, l.c. 252, and cases cited.] Such assent of the city is not a mere "yes" or "no." It implies the right to fix the conditions of such assent. Section 10459 gives the Commission the exclusive power to fix the terms and conditions upon which a railroad shall cross a street, thus depriving the city of all the usual prerogatives attendant upon the giving of assent. The taking away from the city of the right to fix the terms and conditions of assent is inconsistent with the necessity for the city's assent.
Section 10459 gives the Commission the power to alter or altogether abolish grade crossings. The railroad might secure the assent of the city, followed by permission of the Commission, and then construct its crossing at grade, and immediately conditions might arise where the Commission might reasonably see fit to abolish *Page 205 such crossing, and the fact that the city had given its assent and was willing for the crossing to remain, or even insisted upon it remaining, would present not the slightest legal objection to the action of the Commission in abolishing the crossing. The right to exercise the power to abolish such crossing is inconsistent with the necessity for the city's assent.
By subdivision 2 of Section 10459 the Commission has exclusive power to determine and prescribe not only the manner, but the particular point of crossing. The city might condition its assent upon the crossing being made at a particular point at which the Commission, in the exercise of its exclusive power, might not sanction the crossing to be made.
Under subdivision 2 of Section 10459 the Commission has the exclusive power to apportion the expense of installing and maintaining grade crossings. A portion of the expense may be taxed to the city. The city might condition its assent in such manner as to avoid payment of any portion of the expense where the Commission had ordered otherwise. Here again conflict appears.
To hold that the assent of the city and the permission of the Commission are both essential is to convict the Legislature of doing an unwise thing and creating conditions which lead to chaos. If the city's assent is necessary, it can be as arbitrary as it pleases in granting such assent. It can require that the railroad employ a watchman at the crossing as the condition of its assent, while the Commission might think gates necessary and condition its permission upon such requirement. The city might utterly refuse its assent to the crossing if the railroad was permitted to use an electric crossing bell, while the Commission might make the requirement that the crossing be authorized solely on condition that such electric crossing bell be installed. The railroad could not comply with both. The Legislature would thus be convicted of imposing upon the railroad a conflict of authority.
By Section 10459 the entire subject of railroad crossings is placed under the jurisdiction of the Commission. *Page 206 The first subdivision deals with grade crossings; the second wth grade crossings and those not at grade. Appellants seem to contend that the permissive order of the Commission is required for grade crossings. The provisions that the Commission shall prescribe the terms upon which separation of grades shall be made and shall apportion the expense between the railroad or street railroad and the municipality, places complete control in the hands of the Commission over crossings not at grade. [State ex rel. Light Power Co. v. Public Service Comm., 272 Mo. 645; State ex rel. M.K. T. Ry. Co. v. Public Service Comm.,271 Mo. 270.]
At least in the particulars above pointed out there is serious and irreconcilable conflict between the two sections, and Section 9850 should be held to be repealed by implication in so far as the assent of the city is concerned. A reason for repealing said section suggests itself — a legislative reason, and one not the business of the courts. The assent of the city provided for in Section 9850 is an assent which might be capriciously given or withheld, while the order made by the Commission is reviewable in the courts, and if its order granting or refusing permission is unreasonable such order can and will be set aside oncertiorari.
There is nothing in State ex rel. United Railways Co. v. Public Service Commission, 270 Mo. 429, which militates against my conclusion that the Public Service Commission has exclusive power to grant permission for the crossing of the city streets by the tracks of a steam railroad. There this court was dealing with Section 20, Article XII, of the Constitution, which forbids the General Assembly granting the right to construct and operate a street railroad within any city or on any public highway without first acquiring the consent of the local authorities having control of the street or highway proposed to be occupied by said street railroad. That section applies to street railroads only and with respect to the occupancy of streets and the use thereof as part of a street railroad system. Even though construed as a limitation on the *Page 207 right of street railroads to cross streets in providing adequate facilities for use in connection with its transit lines already constructed with the consent of the city, the section, in words, applies only to street railroads. The section was not construed in that case to prevent the crossing of streets by street railroads under such circumstances. In fact, quite to the contrary. At page 442, Judge WALKER said: "That the Public Service Commission has ample power to order the construction of such sidetracks, switches, cross-overs and terminals as are purely incidental to the operation of main lines is not questioned; but the Legislature has no constitutional authority, did not intend, and hence the Commission is not empowered, to compel public utilities, in the absence of authority in their charters, to enter new territory by the extension of their lines of roads."
The police power exercised by the city over its streets is only a power delegated by the State. The police power is inherent in sovereignty, that is, in the State. The municipality can make no claim of inherent right to exercise police power over its streets as against a delegation of the exercise of that power to another agency of the State. [Peterson v. Railroad, 265 Mo. 462.] The argument of appellants concerning the abuses of the rights of the city liable to occur if the assent of the city is not required might be persuasive if addressed to the Legislature. In my opinion, the State has delegated the exercise of its police power over streets and highways to the Commission with right of review in the courts. The courts can be trusted not to approve any order of the Commission which is unreasonable.
There is a further question raised in the brief and argument of counsel for the Missouri, Kansas Texas Railway Company which is not considered in the majority opinion. That question should be disposed of before the judgment of the trial court sustaining the order of the Public Service Commission may properly be reversed. Counsel for the railway company contend that the provisions of Section 13, Article XII, of our Constitution, *Page 208 make unnecessary the assent of the city, and inferentially, for that matter, the assent of the Commission as well. I will not here undertake to consider that question because it is unnecessary under the views I hold as to the applicable statutes.
For the reasons stated the judgment of the trial court should be affirmed, and I respectfully dissent to the contrary conclusion reached by the majority.